Legal experts have voiced their concern about new European Union cybercrime rules approved by the 15 national justice ministers last Friday, because they say the rules don't differentiate between a real criminal and political protesters expressing their views by email.

The 15 European ministers signed up to a code on cybercrime that makes no legal distinction between an online protester and the terrorists, virus merchants and hackers the code is designed to trap, according to legal practitioners and academics.

The code forces all 15 Union countries to adopt a new criminal offence: illegal access to, and illegal interference with an information system, and calls on national courts to impose jail terms of at least two years in serious cases.

In its introduction, the code references a recently adopted Council of Europe charter on cybercrime, which defines unsolicited emails designed to hinder the computer system of the recipient of the message as criminal activity.

Such rules would outlaw legitimate protests like last Wednesday's "virtual protest march", where the White House and US Senate offices were barraged with tens of thousands of messages by phone, fax and email, in protest against the proposed war on Iraq.

So if EU citizens bombarded British prime minister Tony Blair's email, fax or phone lines in the same way, they could have committed a criminal offence under this new code, said Leon de Costa, chief executive of Judicium, a London-based legal consultancy.

"This code appears to catch overt protesters as well as covert criminals," de Costa said, adding that "it criminalises behaviour which until now has been seen as lawful civil disobedience."

The text also makes reference to the Charter of Fundamental Human Rights of the EU, but only to clauses safeguarding citizens' right to life and their right to freedom and security. There is no reference to the article on citizens' right to freedom of expression.

An EU diplomat involved in the drafting of the cybercrime code agreed that protection mechanisms in the code are soft. "We still have the opportunity to look at the recitals and make modifications," he said under the normal condition of anonymity.

He added that the cybercrime code's inability to distinguish between a covert criminal and an overt protester "is an item we will be thinking about when we modify the text. It could be that the freedom of expression article in Convention of Human Rights needs to be flagged," he said.